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15 September 2010

Is Copyright Infringement Theft?

Some time ago, Terry Hart wrote a post on Copyhype which leaned towards characterising copyright infringement as theft, and Techdirt(via @gkjohn) subsequently posted a write-up on why copyright infringement is not synonymous with theft. There exists case law on the subject; unfortunately, case law which is susceptible to interpretation, and as much as one might wish, the issue is not entirely one which confines itself to legal interpretation but is one which deals with how one perceives copyright infringement. That is to say, does one consider copyright infringement to be a legal issue with moral overtones?

If one were to think of copyright infringement as a moral wrong, one would be far more likely to think of infringement as theft – in the popular sense of the word – with all of its attendant moral implications. However, if one were to think of copyright infringement as merely the violation of a legal right (which is, incidentally, how I perceive copyright infringement), one would be far less likely to consider copyright infringement along the same lines as theft. However, that being said, the question is more nuanced than “Is Copyright Infringement Theft?” since copyright infringement often occurs concurrently with plagiarism. As fluid as the term “plagiarism” may be, there is little doubt that plagiarism involves copying another person’s work or ideas without attributing that person. There may, of course, be times when plagiarism is unintentional and inadvertent. In such cases, assuming attribution is accorded to the source as soon as a crediting error is noticed, plagiarism would generally not be considered to be an issue.

Leaving aside instances of inadvertent plagiarism, firstly, if the person committing plagiarism were copying another person’s work in a manner which would violate the rights of the owner of the work as defined by copyright statutes, not only would he be committing copyright infringement but he would also be violating the original author’s moral rights. And, secondly, assuming that he copied the original author’s work in a manner which did not make the copied version fall within the scope of the violation of copyright or of the author’s moral rights under copyright law (such as by paraphrasing the author’s idea without attribution and with completely new expressions), he would still be committing plagiarism although he would not be guilty of copyright infringement or of violating the author’s moral right as defined by copyright law.

In the first case, it is relatively clear that both the owner’s and the author’s rights would be violated. However, as far as the owner’s rights are concerned, the scope of copyright infringement has itself become so wide today that it is virtually impossible to make any form of derivative work from a copyrighted work without committing copyright infringement. Considering that copyright is, in itself, an entirely legal right, it could, consequently, be argued that it is amoral. Theft, on the other hand, has distinctly moral and religious overtones. As such, the mere violation of copyright may not be comparable to theft because of having an entirely different genesis.

There is, however, still the issue of plagiarism to be dealt with in both the first and second cases. Plagiarism, which may be roughly equated with the violation of an author’s moral right to attribution, is generally considered to have moral overtones, and need not necessarily occur in conjunction with copyright infringement.

It is far easier to make comparisons between theft and plagiarism than it is to do so between theft and copyright infringement because both theft and plagiarism are — to a certain set of persons — distinctly moral issues. As G. Thomas Couser, explained in an open letter to student plagiarists: “The opposite of academic honesty is not actually academic dishonesty; it’s dishonesty that is decidedly unacademic. … The problem is not so much rule breaking as point missing.” However, there is, of course, also a set of persons to whom plagiarism is not a moral issue.

Further, attempting to bind plagiarism to ethical, philosophical or historical anchors is not always easy. For example, prior to the emergence of modern copyright, much of our intellectual work product was communal and derivative — and there is no evidence that plagiarism was ever an overriding concern. There are those who draw parallels between the manner of creating works in say, the medieval times, and in modern times: the Internet has once again allowed us to create much of our intellectual work product on a communal basis, this time on a international scale, with many of our ideas of authorship supposedly being eroded. And, if the importance accorded to authorship were to be diminished, the likelihood of plagiarism being considered a wrong would also be diminished; without a clear author, who would one attribute?

The primary problem with this argument is that whether or not an author is easily identifiable, a person using an existing work would still be able to source it. For example, a Wikipedia article, the definition of a communal work, could always be attributed with a link to it even if its authors were numerous or difficult to identify. Copying from a work of joint authorship does not negate the fact that such copying is plagiarism if it is devoid of attribution. In addition to this, as Jonathan H. Adler has pointed out, “The mash-up culture is not a culture of plagiarism. Those who copy music, lift riffs, or appropriate images don’t usually claim authorship of the original source material or claim it as their own. They use this material in works of their own, while freely acknowledging its provenance. …. Even in the Internet Age, we recognize the difference between incorporating the work of another and passing it off as one’s own.”

The appropriation of another’s work and passing it off as one’s own would seem to be a moral issue. Whether or not one considers it to be synonymous with theft is, however, ultimately, a value judgment. Given that such appropriation or plagiarism often takes place in conjunction with copyright infringement, it is difficult to separately consider issues of ownership and authorship, of the violation of a legal right and the violation of a moral right, and most importantly, in this case, to separately consider the issues of infringement and theft.

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